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DOROTHY PASHAK v. MARVIN I. BARISH (08/27/82)

filed: August 27, 1982.

DOROTHY PASHAK, APPELLANT,
v.
MARVIN I. BARISH, ESQUIRE AND ADLER, BARISH, DANIELS, LEVIN AND CRESKOFF, A PARTNERSHIP



No. 1645 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, at No. 3181 December Term, 1980.

COUNSEL

Lee A. Solomon, Philadelphia, for appellant.

Susan Warnock, Philadelphia, for appellees.

Wieand, Beck and Hoffman, JJ.

Author: Hoffman

[ 303 Pa. Super. Page 560]

Appellant contends that the lower court erred in dismissing her complaint with prejudice. We disagree and, accordingly, affirm the order of the court below.

In May 1976, appellant's husband, William Pashak,*fn1 was injured while working as a longshoreman. In September of that year, he sued the ship's owner in federal court alleging that the ship was unseaworthy and that the shipowner had been negligent. Shortly thereafter, Mr. Pashak retained appellees as his attorneys to prosecute the federal action. In 1979, appellees recommended, and Mr. Pashak agreed, to settle the case for $100,000. Mr. Pashak executed a release and subsequently received the settlement proceeds net of appellees' fees. Later, he was notified that, contrary to appellees' advice, his statutory compensation benefits would

[ 303 Pa. Super. Page 561]

    be terminated due to the settlement. Appellant also learned that she might be precluded from recovering any such benefits as a consequence of her husband's settlement. In December 1980, appellant commenced this action in assumpsit and trespass alleging that through appellees' malpractice she "has been precluded from ever receiving any [statutory] compensation benefits." Appellees filed preliminary objections alleging, inter alia, that appellant's loss was too conjectural and remote to warrant recovery in a malpractice action. The lower court agreed with appellees and dismissed appellant's complaint with prejudice. This appeal followed.

Appellant contends that the lower court erred in concluding that her loss was too conjectural and remote to warrant recovery in a legal malpractice action. "[W]hen it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, whether the action be denominated in assumpsit or trespass, is proof of actual loss." Duke & Co. v. Anderson, 275 Pa. Superior Ct. 65, 73, 418 A.2d 613, 617 (1980) (assumpsit). Cf. Schenkel v. Monheit, 266 Pa. Superior Ct. 396, 405 A.2d 493 (1979) (trespass). To maintain a cause of action, a third party to the attorney-client relationship must likewise prove he has suffered actual damages as a result of the attorney's malpractice. See Guy v. Liederbach, 279 Pa. Superior Ct. 543, 547, 421 A.2d 333, 336 (1980) (applying Schenkel to beneficiary's action for negligent execution of will) (petition for allowance of appeal granted November 15, 1980). "'The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm -- not yet realized -- does not suffice to create a cause of action for [malpractice].'" Schenkel v. Monheit, supra, 266 Pa. Superior Ct. at 399, 405 A.2d at 494, quoting Budd v. Nixen, 6 Cal.3d 195, 200, 491 P.2d 433, 436-37, 98 Cal.Rptr. 849, 852 (1971).

It is generally accepted that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable

[ 303 Pa. Super. Page 562]

    damages. The mere possibility or even probability that the plaintiff will sustain an injury at some future time does not alter the speculative nature of the damage claim ...


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